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CIA No Longer Can Defend the Indefensible -- Its Torture Program

Demonstrators at the International Day to Shut Down Guantanamo in 2007. The rally was held in Washington, D.C. (takomabibelot / Flickr)

Demonstrators at the International Day to Shut Down Guantanamo in 2007. The rally was held in Washington, D.C. (takomabibelot / Flickr)

James Mitchell and Bruce Jessen, the two contract psychologists who were the masterminds of the CIA’s torture program, are in for a heap of trouble. They are defendants in two major lawsuits accusing them of designing, implementing, overseeing and personally participating in the CIA’s post-9/11 torture program. That they did exactly that is not in doubt. Indeed, Mitchell has written proudly of his work in a new book.

But what makes these cases newsworthy is that the CIA has apparently turned its back on the two, offering no support and even cooperating with the plaintiffs by voluntarily turning over documents and refusing to supply CIA officers to serve as defense witnesses. (This is not out of the goodness of the CIA’s heart. But we’ll get to that later.)

The American Civil Liberties Union (ACLU) filed the first suit in January in the federal district court for the Eastern District of Washington state, where Mitchell and Jessen based their company, on behalf of three former CIA detainees—Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud and the estate of Gul Rahman, a suspected Afghan militant who was tortured and who died in CIA custody in 2002. The second suit was filed on behalf of Abu Zubaydah in the federal district court for the District of Columbia. The suit holds that Abu Zubaydah was tortured relentlessly by the CIA, which held him in a series of secret prisons around the world.

Author’s note: I have a long, personal connection to Abu Zubaydah. I was the CIA officer responsible for his capture in Faisalabad, Pakistan, in March 2002. I sat and spoke with him for the first 56 hours of his captivity. I later put him on a CIA plane, the destination of which I had no idea. That destination turned out to be a secret prison where Abu Zubaydah was tortured, including being waterboarded 83 times, and brutalized psychologically. I later blew the whistle on the CIA’s torture program in a nationally televised interview with ABC News. Five years later, I was sentenced to 30 months in prison for the revelations that came out of that interview. I believed then, and continue to believe today, that the CIA torture program was an abomination and a crime against humanity.

Mitchell and Jessen have argued in the Washington state case that they should be immune from the suit because they were acting on behalf of the CIA as contractors. They further said that, as contractors, they were technically under U.S. military oversight and that, as such, they are protected from lawsuits under the Military Commissions Act. The CIA, though, is not a military organization; it is a civilian one. And, according to the ACLU, even if they did work for the military, “acting jointly [for the military and the CIA] in no way changes that definition [of a contractor]. There is no support for immunity for that type of action.”

More importantly, Quackenbush also ruled that Salim, Ben Soud and Rahman had never been designated as “enemy combatants.” Indeed, there is ample evidence that none of the men were ever guilty of anything related to terrorism. They were simply caught up in America’s post-9/11 hysteria, sent to godforsaken hellholes to be tortured, and, except for Rahman, finally released.

Abu Zubaydah was certainly an al-Qaida facilitator. He ran al-Qaida’s House of Martyrs safe house in Peshawar, Pakistan. He ran the group’s training camps in southern Afghanistan. And he procured passports, funds and safe houses for al-Qaida fighters entering and exiting Afghanistan before 9/11.

But the United States is a country of laws. Whether we like Abu Zubaydah’s politics or not, he has the right to face his accusers in a court of law. He has the right to a zealous defense. He has the right to be treated with respect. He has the same universal human rights as any American. But he has been denied those rights. He deserves his day in court.

So why is the CIA walking away from Mitchell and Jessen? It simply doesn’t have the stomach to defend the indefensible any longer. The September 11 attacks are a distant memory for most Americans. And most politicians have taken a position against torture. The torture program, the hideous details of which we generally know from the Senate Torture Report, are simply too much for even the CIA to continue to support. Assisting Mitchell and Jessen, even by asking the judge to dismiss the case against them, is not worth the political trouble that would result for the CIA on Capitol Hill. It’s time to walk away.

Walking away is a great first step. But the four defendants in this case cry out for justice. I won’t yet bet money that they will receive it.